The World Until Yesterday: What Can We Learn from Traditional Societies? (22 page)

Thus, the overriding goal of state justice is to maintain society’s stability by providing a mandatory alternative to do-it-yourself justice. All other goals of state justice are secondary to that main one. In particular, the state has less or no interest in the overriding goal of justice in small-scale non-state societies: to restore a pre-existing relationship or non-relationship (e.g., by promoting an exchange of feelings) between disputing parties who already knew or knew of each other and must continue to deal with each other. Hence non-state dispute resolution is not primarily a system of justice in the state sense: that is, a system to decide right and wrong, according to a state’s laws. Bearing in mind those different overriding goals, how similar are state and non-state systems of dispute resolution in their operation?

A starting point is to realize that state justice is divided into two systems, which often employ different courts, judges, lawyers, and bodies of the law: criminal justice and civil justice. Criminal justice is concerned with crimes against the state’s laws, punishable by the state. Civil justice is concerned with non-criminal injuries inflicted by one individual (or group) on another, and further subdivided into two types of actions: contract cases, resulting from breach of a contract, and often or usually involving money; and tort cases, resulting from injury done to a person herself or to her property through the action of another person. The state’s distinction between criminal and civil actions is gray in a non-state society, which has societal norms of behavior between individuals but does not have codified laws defining crimes against a formally defined institution, the state. Compounding the grayness is that an injury to an individual is likely to affect other individuals as well, and small societies are much more concerned than are state societies with those effects on others—as exemplified by the
case I related of everyone in a !Kung band being affected by and joining the arguments between an unhappy husband and wife. (Imagine if a judge in a California divorce court were to take testimony about how the divorce would affect everybody in town.) In New Guinea, essentially the same system for negotiating compensation is used to deal with the intentional killing of one person by another, the repayment of a bride-price after a divorce, and one man’s pig damaging another man’s garden (respectively a crime, a contract, and a tort in Western courts).

Let’s begin by comparing state and non-state systems for civil disputes. One similarity is that both use third parties to mediate, to separate the disputing parties, and thereby to promote cooling-off. Those intermediaries are experienced negotiators like Yaghean in New Guinea, leopard-skin chiefs among the Nuer, and lawyers in state courts. In fact, states have other types of intermediaries besides lawyers: many disputes are handled outside the court system by third parties such as arbitrators, mediators, and insurance adjusters. Despite Americans’ reputation for being litigious, the great majority of civil disputes in the U.S. are settled outside the courts or before going to trial. Some professions consisting of a small number of members monopolizing a resource—such as Maine lobster fishermen, cattle ranchers, and diamond traders—commonly settle member disputes by themselves without state involvement. Only if third-party negotiation fails to produce a settlement mutually agreeable to the parties do they resort to their society’s method of dealing with a dispute without a mutual agreement: violence or war in a non-state society, and a trial or formal adjudication in a state society.

A further similarity is that both state and non-state societies often spread the cost owed by the offending party over many other payers. In state societies we purchase automobile and homeowner insurance policies that pay the costs if our car injures a person or another car, or if someone is injured by falling on our house’s steps that we negligently left slippery. We and many others pay insurance premiums that permit the insurance company to pay those costs, so that in effect other policy-holders share our liability and vice versa. Similarly, in non-state societies the relatives and fellow clan members share in payments owed by an individual: for instance, Malo told me that his fellow villagers would have contributed to
the compensation payment for Billy’s death if Malo hadn’t been working for a company able to make the payment.

In state societies the civil cases whose courses are most similar to that of a New Guinea compensation negotiation are business disputes between parties involved in a long-term business relationship. When an issue arises that such business parties cannot work out by themselves, one party may become angry and consult an attorney. (That’s much more likely in the U.S. than in Japan and other countries.) Especially in a long-term relationship in which there has been a build-up of trust, the aggrieved party feels taken advantage of, betrayed, and even more angry than if it were just a “one-off” relationship (i.e., the first business encounter for the parties). As in a New Guinea compensation negotiation, channeling business-dispute discussions through lawyers cools off the dispute by substituting (one hopes) calm reasoned statements of lawyers for angry personal recriminations of the parties, and reduces the risk that opposing positions will harden. When the parties have the prospect of continuing a profitable business relationship in the future, they are motivated to accept a face-saving solution—just as New Guineans in the same village or neighboring villages, expecting to continue to encounter each other for the rest of their lives, are motivated to find a solution. Nevertheless, lawyer friends tell me that a New Guinea–style genuine apology and emotional closure are rare even in business disputes, and that usually the most that can be expected is a scripted apology produced as a settlement tactic at a late stage. If, however, business parties are involved in a one-off relationship and never expect to deal with each other again, then their motivation for amicable settlement is lower (just as is true of New Guinea or Nuer disputes between members of distant tribes), and the risk increases that the dispute will proceed to the state’s equivalent of war: a trial. Nevertheless, trials and adjudications are expensive, their outcomes are unpredictable, and even one-off business disputants experience pressures to settle.

Yet another parallel between state and non-state dispute resolution involves international disputes between states (as opposed to disputes between fellow citizens within the same state). While some international disputes are now settled by the International Court of Justice by agreement of the governments involved, others are dealt with by essentially the
traditional approach operating on a large scale: direct negotiations or mediated negotiations between the parties, aware that failure of the negotiations may trigger the flip-side mechanism of war. Prime examples are the 1938 dispute between Hitler’s Germany and Czechoslovakia over the Czech border region of Sudetenland with an ethnic German majority, resolved by mediation by Britain and France (which pressured their Czech ally to settle); and the series of European crises in the years before World War I, each temporarily settled by negotiation until the 1914 crisis provoked by the assassination of Archduke Franz Ferdinand did end in war.

Those are some of the parallels between non-state dispute resolution and state civil justice. As for the differences, the most basic is that, if a civil case does pass from the negotiating stage to trial, then the state’s concern at the trial is not primarily with emotional clearance, restoring good relations, or promoting a mutual understanding of feelings between the disputing parties—even when the parties are siblings, estranged spouses, parents and children, or neighbors who share a huge emotional investment in each other and may have to deal with each other for the rest of their lives. Of course, in many or most cases in populous state societies, consisting of millions of citizens who are strangers to each other, the people involved had no prior relationship, don’t anticipate any future relationship, and were brought together just on a one-shot basis by the event underlying the case: a customer and a merchant, two drivers involved in a traffic accident, a criminal and a victim, and so on. Yet the underlying event and the subsequent judicial proceedings still create a legacy of feelings in both of those strangers, and the state does little or nothing to assuage the feelings.

Instead, at a trial the state is first concerned with determining right or wrong (
Plate 16
). If the case involves a contract, did or did not the defendant breach the contract? If the case involves a tort, was or was not the defendant negligent, or did the defendant at least cause the injury? Note the contrast between that first question asked by the state and the case of Malo and Billy. Billy’s relatives agreed that Malo had not been negligent, but they still requested compensation, and Malo’s employer immediately agreed to pay compensation—because the goal of both parties was to reestablish a previous relationship (in this case, a previous non-relationship) rather than to debate right or wrong. That feature of New Guinea peace-
making applies to many other traditional societies as well. For example, in the words of Chief Justice Robert Yazzie of the Navajo Nation, one of the two most populous Native American communities of North America, “Western adjudication is a search for what happened and who did it; Navajo peace-making is about the effect of what happened. Who got hurt? What do they feel about it? What can be done to repair the harm?”

Once the state has resolved that first step of determining whether the defendant is legally liable in a civil dispute, the state then proceeds to the second step of calculating the damages owed by the defendant if the defendant is found to have breached the contract or been negligent or liable. The purpose of the calculation is described as “making the plaintiff whole”—i.e., insofar as is possible, to restore the plaintiff to the condition that she would have been in if there had been no breach or negligence. For instance, suppose that the seller signed a contract to sell to the buyer 100 chickens at $7 per chicken, that the seller then breached the contract by failing to deliver the chickens, and that the buyer as a result had to buy 100 chickens at the higher price of $10 per chicken on the open market, thereby forcing the buyer to spend an extra $300 above the contractual amount. In a court case the seller would be ordered to pay to the buyer those damages of $300, plus costs incurred in securing the new contract, plus perhaps interest for the lost use of that $300, thereby restoring the buyer (at least nominally) to the position in which he would have been if the seller had not breached the contract. Similarly, in the case of a tort, the court will attempt to calculate the damages, although that is more difficult to calculate for physical or emotional injury to a person than for damage to property. (I recall a lawyer friend of mine who was defending a motorboat-owner whose motorboat propeller had severed the leg of an elderly swimmer, and who argued to the jury that the value of the severed leg was modest because of the victim’s advanced age and short expected remaining lifespan even before the accident.)

Superficially, the state’s calculation of damages seems similar to compensation negotiated in New Guinea or among the Nuer. But that is not necessarily true. Whereas the standardized compensation for some New Guinea and Nuer offenses (e.g., 40 to 50 Nuer cows for taking a person’s life) could be construed as damages, in other cases non-state compensation is calculated as whatever amount the disputing parties agree on as the
basis for putting behind them their injured feelings and resuming their relationship: e.g., the pigs and other goods that my Goti Village friends agreed to pay
to
the clans that had killed the father of my Goti friend Pius.

The defects in our state system of civil justice are widely discussed by lawyers, judges, plaintiffs, and defendants alike. The defects of the American system are variously more or less severe in other state societies. One problem is that court resolution of civil disputes tends to take a long time, often up to five years, because criminal cases take precedence over civil cases, and judges may get re-assigned from civil court to criminal court in order to try criminal cases. For instance, at the time that I drafted this paragraph, no civil cases were being tried in Riverside County just east of my home city of Los Angeles because of a backlog of criminal cases. That means five years of irresolution, living in limbo, and emotional torment, compared to the five days that it took to settle the case of Malo’s accidental killing of Billy. (However, the clan warfare that might have resulted if Malo’s and Billy’s case hadn’t been resolved by negotiation could have lasted much longer than five years.)

A second claimed defect of state civil justice in the U.S. is that, in most cases, it fails to require the losing party to pay the lawyers’ fees of the successful party, unless that had been specified at the outset in the contract under dispute. That failure, it is often argued, creates an asymmetry favoring the wealthier party (whether that is the plaintiff or the defendant), and placing pressure on a less wealthy plaintiff to settle for less than the actual loss, and on a less wealthy defendant to settle by paying a frivolous claim. That’s because wealthy parties threaten expensive litigation, adopt delaying tactics, and file endless discovery motions in order to wear down the other party financially. It is illogical that the goal of civil justice should be to make the aggrieved party whole, but that the loser should not be required to pay the winner’s attorney fees in the U.S. In contrast, legal systems in Britain and some other countries require the loser to pay at least some of the winner’s fees and costs.

The remaining defect of state civil justice is the most fundamental one:
that it is concerned with damages, and that emotional closure and reconciliation are secondary or irrelevant. For civil disputes pitting against each other strangers who will never encounter each other again (e.g., two people whose cars collide), in some cases something could be done to promote emotional closure and avoid a life-long legacy of non-resolution, even if it merely involved offering both parties the opportunity (if they consent) to air their feelings to each other, and to perceive each other as humans with their own motives and sufferings. That can be possible even under such extreme circumstances as when one of the parties has killed a close relative of the other party. Better than no emotional exchange at all was the exchange that did take place between Gideon and Billy’s father—or the exchange between Senator Edward Kennedy and Mary Jo Kopechne’s parents, when Kennedy on his own private initiative courageously visited and looked into the faces of the parents whose daughter’s death he had caused through his own gross negligence.